| 5 Delivering The
Vision: Law Reform |
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5.1 Overall,
the views expressed in the responses to the Group’s first consultation paper were as
follows:
- There was a widespread welcome for the Government’s
proposals to abolish the feudal system; particular support was expressed for the removal
of the more oppressive aspects of the system such as the practice of demanding money for
waiving feudal conditions;
- An even stronger body of opinion favoured retaining
conditions on land ownership ("real burdens") where this is useful and not
against the public interest, especially where burdens provide for access to essential
services or the maintenance of properties; some landowners - in both the public and the
private sector - pointed to the way in which burdens can be used to maintain the amenity
of an area and to safeguard the interests of neighbours or members of the community; there
was concern as to how this "conditionality" should be provided in a modern
context, and alternatives which were mooted included a greater role or more pro-active
approach by the planning authorities, more powers for communities, and the establishment
of a principle that land ownership should carry with it responsibility for the public
good;
- Some landowners pointed out that thought needs to be given
to the protection of existing rights; land had been sold at a price which reflected the
restrictions or burdens on its use: if the burdens disappear there should be compensation
for the landowner;
- There was no support for the creation of new public rights
for the Crown: this was regarded as undemocratic, old-fashioned and possibly very
expensive; some respondents believed it would amount to nationalisation by the back door;
- The majority of respondents did not favour legislation to
strengthen public rights over the foreshore, but there was support for more consultation
at local level to resolve disagreements; some respondents suggested that disputes which
could not be resolved should be referred to the Lands Tribunal or a similar body; another
suggestion was that there should be a code to govern access to and use of the foreshore.
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| Vision for
the future |
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5.2 This feeds
in well to the emerging vision set out in Chapter 3. Key features as regards law reform
are:
- outdated and unfair feudal arrangements swept away;
- conditionality of land ownership where appropriate to
reflect modern circumstances;
- a more constructive approach to problem cases, including
those relating to the foreshore and the seabed.
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| Delivering
the vision |
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5.3 The
Scottish Law Commission will take all of the comments received into account in developing
- its final Report on abolition of the feudal system which
will be submitted by the end of 1998; and
- the discussion paper on the related question of real burdens
which will issue in the autumn (with the final Report due to be submitted by the end of
1999).
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| The Land
Reform Policy Group is liaising closely with the Scottish Law Commission on these issues.
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| 5.4 In the
light of concerns relating to the foreshore and the seabed, and the complexity of the
current law in this regard, the Group proposes that the Scottish Law Commission be invited
to undertake a comprehensive review with a view to reform of the law of the foreshore and
the seabed. |
